Am. Med. Sys., LLC v. MSP Recovery Claims, Series LLC

• Decision Date: 11 December 2019
• Docket Number: No. 3D19-1570,3D19-1570
• Citation: 290 So.3d 548
• Parties: AMERICAN MEDICAL SYSTEMS, LLC, etc., et al., Petitioners, v. MSP RECOVERY CLAIMS, SERIES LLC, et al., Respondents.
• Court: Florida District Court of Appeals

290 So.3d 548

AMERICAN MEDICAL SYSTEMS, LLC, etc., et al., Petitioners,

v.MSP RECOVERY CLAIMS, SERIES LLC, et al., Respondents.

No. 3D19-1570

District Court of Appeal of Florida, Third District.

Opinion filed December 11, 2019

Reed Smith LLP, and Edward M. Mullins, Lisa M. Baird, David J. de Jesus and Christina Olivos, for petitioners.

MSP Recovery Law Firm, and John H. Ruiz, Michael O. Mena, Gino Moreno and Christine M. Lugo, for respondents.

Squire Patton Boggs (US) LLP, Andrew R. Kruppa and Amanda E. Preston ; Rumberger, Kirk & Caldwell, P.A., and Joshua D. Lerner, for Ethicon, Inc. and Boston Scientific Corporation, as amici curiae.

Lewis Brisbois Bisgaard & Smith LLP, and Kathryn L. Ender, Joelle C. Sharman and Brian S. Goldenberg, for ALN International, Inc. and ALN Implants Chirurgicaux, as amici curiae.

Before EMAS, C.J., and LOGUE and SCALES, JJ.

PER CURIAM.

American Medical Systems, LLC, f/k/a American Medical Systems, Inc., American Medical Systems Holdings, Inc., Endo Pharmaceuticals, Inc., and Endo Health Solutions, Inc. f/k/a Endo Pharmaceuticals Holdings, Inc. (collectively "Petitioners"), the defendants below, seek a writ of certiorari to quash the trial court's non-final order denying their motion to dismiss the amended complaint for a pure bill of discovery filed by the plaintiffs below, MSP Recovery Claims, Series, LLC, MSPA Claims 1, LLC, and Series PMPI, a Designated Series of MAO-MSO Recovery II, LLC (collectively "Respondents"). Because Petitioners have failed to demonstrate the requisite irreparable harm, we lack jurisdiction to hear, and therefore dismiss, the instant petition. See Villella v. Ansin, 263 So. 3d 823, 825 (Fla. 3d DCA 2019) ("On this record, where the trial court has not finally resolved whether [the petitioner] may obtain the discovery he seeks ... we conclude that [the petitioner] has failed to demonstrate the requisite irreparable harm that is required for us to have jurisdiction over this petition."); Lee v. Condell, 208 So. 3d 253, 256 (Fla. 3d DCA 2016) ("[I]rreparable harm is a condition precedent to invoking certiorari jurisdiction that should be considered first." (quoting Lacaretta Rest. v. Zepeda, 115 So. 3d 1091, 1092 (Fla. 1st DCA 2013) )); CQB, 2010, LLC v. Bank of N.Y. Mellon, 177 So. 3d 644, 645 (Fla. 1st DCA 2015) ("The requirement of material, irreparable harm is jurisdictional. We must dismiss the petition if it is not met.").

I. Relevant Background

On January 22, 2019, Respondents filed an amended complaint for a pure bill of discovery against Petitioners, seeking to compel Petitioners to identify whether certain Medicare beneficiaries were implanted with pelvic mesh products sold by Petitioners, and whose healthcare costs were subsequently paid by a Medicare Advantage Organization. On May 3, 2019, Petitioners moved to dismiss the amended complaint, arguing that Respondents had failed to state a valid claim for a pure bill of discovery and that Respondents lacked standing to bring such a claim.¹

On July 9, 2019, the trial court held a hearing on Petitioners' motion to dismiss the amended complaint and stated that it was denying Petitioners' motion to dismiss. The hearing transcript reflects that the trial court, in denying the motion, confirmed with the parties that the next step in the proceeding was for Petitioners to answer to the amended complaint; but, at Petitioners' request, the trial court agreed to stay the lower proceeding should Petitioners decide to seek appellate review of its order denying the motion to dismiss. The next day, July 10, 2019, the trial court entered the challenged order denying Petitioners' motion to dismiss. While the order requires Petitioners to answer to Respondents' amended complaint within thirty days, the order does not require Petitioners to produce any discovery material. The order also provides that the case shall be stayed pending resolution of any timely appeal or petition.

On August 9, 2019, Petitioners timely filed the instant petition in this Court seeking certiorari review of the trial court's order denying Petitioners' motion to dismiss. Respondents responded to the petition and, in the same filing, moved to dismiss the petition. Specifically, noting both that the trial court merely ordered Petitioners to answer the amended complaint, and that Petitioners have not yet been ordered to produce any discovery sought therein, Respondents argue that Petitioners cannot demonstrate the requisite irreparable harm that would vest this Court with the jurisdiction to determine whether there has been a departure from the essential requirements of the law.

II. Analysis

A. Introduction

We agree that Petitioners have not established that the challenged order – merely denying their motion to dismiss – results in the requisite irreparable harm to vest us with jurisdiction, and therefore dismiss the instant petition. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995) ("[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law.").

We acknowledge that, in limited instances, Florida's appellate courts have exercised jurisdiction and have engaged in certiorari review of non-final orders issued in actions for a pure bill of discovery. Given the dearth of written opinions discussing this Court's jurisdiction to consider non-final orders entered in such cases, we write to distinguish those cases from this case, and to further explain our reasoning for dismissing the instant petition.

B. Non-final orders denying dismissal of the pure bill of discovery action and requiring production

In several instances, Florida's appellate courts have engaged in certiorari review – and have made the merits determination of whether the orders depart from the essential requirements of law – where the trial court entered non-final orders both denying the petitioner's motion to dismiss and directing the petitioner to provide the very discovery sought in the underlying complaint for a pure bill of discovery. See Gilbert v. I.W., 105 So. 3d 665, 666 (Fla. 4th DCA 2013) ("[W]e quash the order denying Petitioners' motion to dismiss and the related discovery order."); Lewis v. Weaver, 969 So. 2d 586, 588 (Fla. 4th DCA 2007) (denying certiorari as to an order denying petitioner's motion to dismiss and directing petitioner to provide the discovery sought in a pure bill of discovery); Kirlin v. Green, 955 So. 2d 28, 30 (Fla. 3d DCA 2007) (granting the certiorari petition to quash lower court orders in a pure bill of discovery case, concluding that "the trial court departed from the essential requirements of law by denying Petitioners' motion to dismiss and allowing [Respondent] to proceed with discovery ...."); Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So. 2d 1295, 1296 (Fla. 5th DCA 1990) (denying certiorari petition challenging an order that both denied petitioner's motion to dismiss a pure bill of discovery complaint and granted respondent's discovery writ).

Similarly, Florida's appellate courts have exercised certiorari jurisdiction, and reached the merits of the petition, when the challenged non-final orders in pure bill of discovery cases ordered the petitioning party to produce discovery. See Mendez v. Cochran, 700 So. 2d 46, 47 (Fla. 4th DCA 1997) (granting certiorari and quashing the lower court's order in a pure bill of discovery case that denied petitioner's motion for a protective order); Publix Supermarkets, Inc. v. Frazier, 696 So. 2d 1369, 1370 (Fla. 4th DCA 1997) (granting certiorari and vacating an order requiring petitioner to provide the discovery sought in a "Verified Ex Parte Emergency Petition to Preserve Evidence" that respondent characterized as a pure bill of discovery).

C. Distinguishing the cases cited herein from this case

As we see it, though, the lower court's non-final orders issued in all these pure bill of discovery actions are akin to the proverbial "cat out of the bag" discovery orders that this Court has found can cause the requisite irreparable harm warranting the exercise of this Court's certiorari jurisdiction. See J.B. v. State, 250 So. 3d 829, 834 (Fla. 3d DCA 2018) ; Mana v. Cho, 147 So. 3d 1098, 1100 (Fla. 3d DCA 2014) ; Rousso v. Hannon, 146 So. 3d 66, 71 (Fla. 3d DCA 2014). In such instances, should this Court then conclude that the discovery order departs from the essential requirements of the law, this Court will grant the petition and quash the order. See J.B., 250 So. 3d at 834-35 ; Mana, 147 So. 3d at 1100 ; Rousso, 146 So. 3d at 72.

By comparison, because the challenged order in this case requires only that Petitioners file an answer to Respondents' amended complaint – and does not require production of any discovery – Petitioners are unable to establish the requisite irreparable harm for us to exercise certiorari jurisdiction. We, therefore, cannot reach the question of whether the subject order departs from the essential requirements of the law. See Miami-Dade Cty. v. Dade Cty. Police Benevolent Ass'n, 103 So. 3d 236, 238 (Fla. 3d DCA 2012) (recognizing that "prior to addressing whether the petitioners can demonstrate whether the hearing officer's order departs from the essential requirements of the law, [this Court] must first establish that this Court has jurisdiction," i.e., that the "party will suffer material injury of an irreparable nature" (quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educational Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012) )).

D. Petitioners' reliance on pure bill of discovery cases where it is unclear whether the challenged non-final orders required production of discovery

Petitioners rely principally on two cases – JM Family Enterprises, Inc. v. Freeman, 758 So. 2d 1175 (Fla. 4th DCA 2000) and Debt Settlement Administrators, LLC v. Antigua and Barbuda, 950 So. 2d...